Commentary: If Congress wants the unredacted Mueller report, here’s how to get it

The redacted, right, and the unredacted versions of the biographical intelligence file report on Chilean dictator Augusto Pinochet from 1975 is photographed on April 15, 2019, in Washington. In 2003, the Defense Intelligence Agency declassified the documents that included a biographical sketch of Pinochet. Attorney General William Barr’s announcement that he would release a “redacted” version of Mueller’s findings will likely set off a long debate over what’s behind the darkened patches. (AP Photo/Jon Elswick)

The Justice Department has announced that it will deliver special counsel Robert Mueller's report to Congress and the public on Thursday morning, but with redactions of grand jury information (and other categories of information) that will leave innumerable gaps in our understanding of what Mueller uncovered. Many commentators have suggested that Congress's only mechanism for securing an unredacted report is to launch a formal impeachment inquiry - a blind step forward with great political risks for congressional Democrats and the party overall.

That unpleasant choice looked to be the upshot of the U.S. Court of Appeals for the District of Columbia Circuit's recent 2-1 decision in McKeever v. Barr, which held that the courts lack "inherent power" to order disclosure of grand jury material and instead must hew to the six exceptions describing when such material can be released - exceptions that are delineated in Rule 6(e) of the Federal Rules of Civil Procedure.

One of those six is disclosure "preliminary to or in connection with a judicial proceeding." And while it may seem anomalous, several courts have held - and the D.C. Circuit in McKeever expressly affirmed - that "judicial proceeding" within the meaning of the rule encompasses an impeachment inquiry by Congress.

It suggested that the House would be entitled to all the materials - unredacted - only if it first launched a formal impeachment inquiry. And because the Democratic leadership seems loath, for political reasons, to take that step, the prospects for proceeding under that exception - the only known avenue for procuring the unredacted report - looked stalemated.

But that's not correct. In fact, Congress has immediate recourse to seek the unredacted report pursuant to the "judicial proceeding" exception, without having to initiate an impeachment inquiry.

How do we know? Well, for starters, we need look no further than the Starr investigation of President Bill Clinton and the succeeding impeachment proceedings in Congress. In September 1998, before the House had initiated an impeachment inquiry, independent counsel Kenneth W. Starr sought and received from federal district court an order to provide to Congress his report, including voluminous grand jury materials. The court's order granting the request provided expressly that it constituted an order for purposes of the "judicial proceeding" exception in the federal rules.

It was only after digesting Starr's report, and based upon the report, that the House decided to initiate an impeachment proceeding.

The necessary conclusion of the Starr precedent is that "preliminary to" covers circumstances in which Congress seeks a report to determine in the first place whether to launch impeachment proceedings. It follows that the House needn't first launch a formal impeachment inquiry to get the unredacted report.

The attorney general and Rep. Douglas Collins of Georgia, the ranking Republican on the House Judiciary Committee, have suggested that nearly everything about Starr's report is irrelevant to current circumstances because Starr was an independent counsel operating under a different statutory scheme than did Mueller. As, of course, he was. But so what? The court's express holding in response to the Starr motion was that its order applied to Rule 6(e); otherwise put, the transmission of grand jury material was proper because Congress needed it to determine whether to initiate a formal impeachment inquiry. It is difficult to see how Collins, Barr or the Justice Department could make a tenable argument to the contrary.

Indeed, nothing in the independent counsel statute governing Starr's investigation purported to suspend or override the Federal Rules of Civil Procedure, and it would be a bizarre statutory scheme that did so. To the contrary, the statute gave the independent counsel the exact same powers with respect to the grand jury as the attorney general or, by implication, regular Justice Department prosecutors.

And there's a much broader principle in play here. The Justice Department really has no business second-guessing a declaration by Congress, a coordinate branch, that it needs material to consider whether to bring an impeachment, much less to require it to have initiated a formal inquiry in advance. Plainly, as was the case with the Starr report before it, the Mueller report is an indispensable document for Congress to review to decide whether to take a further formal step toward impeachment.

The principle is analogous to the argument the Trump administration successfully made in Trump v. Hawaii - that it was improper to discount its stated reasons for the president's immigration order, dubious though they might have seemed, in light of the president's proclamations on the campaign trail.

A wide range of Supreme Court decisions endorses a similar principle of deference to Congress, which after all is a co-equal branch. Accordingly, if Congress offers a good-faith assertion that it needs the Mueller report to discharge its constitutional duty in deciding whether to impeach the president, no more should be needed. The request complies with both the letter of Rule 6(e) and the spirit of the basic constitutional structure.

The House Judiciary Committee should ask the district court for the release, without delay, of the unredacted Mueller report, because it is "preliminary to or in connection with a judicial proceeding" within the meaning of Rule 6(e). Leave it to the Justice Department to argue to the court, and the country, that the legal principles that applied to Starr no longer operate in 2019.

Harry Litman

Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science.

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